Posted on 07/03/2008 7:27:22 PM PDT by jazusamo
Top federal judges ruled this week that their own court has gone too far in holding up logging projects, saying western judges from now on must show more deference to the agencies planning the cutting.
The ruling involving an Idaho timber sale is a blow to environmental groups that have increasingly relied on federal courts to block projects they see as unsound.
The decision is especially striking because it comes from the federal appeals court that encompasses most national forest land in the West and is known for its liberal bent and for often siding with environmental interests. The ruling redefines the standards for when federal judges in much of the West can stop a logging project, tilting the playing field against critics of logging on public lands.
Mark Rey, the undersecretary of Agriculture who oversees the U.S. Forest Service, called the ruling the most important decision in a national forest environmental case in two decades.
The ruling clears a more direct path for projects designed to thin overgrown forests at high risk of wildfire and insect outbreaks, he said. Federal courts have often slowed such thinning while they examine the environmental justification.
He noted the severe wildfires now burning in California, where the western court panel that issued the ruling is based.
"One possibility is that the smoke helped improve their vision," Rey said. He said the ruling should help the Forest Service get more forest projects done with its limited funding, which is increasingly being diverted to firefighting.
Scott Horngren, a Portland attorney who represented logging companies and timber companies and communities intervening in the case, said such a ruling was "long overdue."
The unanimous decision by 11 judges on the 9th Circuit Court of Appeals was written by Milan D. Smith Jr., the brother of Republican Sen. Gordon Smith of Oregon. The ruling by such a panel is known as an "en banc" decision and is the highest level of court review short of the Supreme Court.
En banc panels hear only a handful of cases each year, and it's very unusual for them to consider what started as a relatively standard case of environmental groups questioning a timber sale.
But Smith apparently got the attention of other judges with a sharply worded decision in the same case last year. He chastised his fellow judges for meddling in matters beyond their expertise and setting up so many standards they "make it virtually impossible for logging to occur under any conditions."
Smith, who grew up in Oregon and was appointed to the appeals court by President Bush in 2006, went so far as to say 9th Circuit judges had decimated the Northwest logging industry with "blunderbuss" rulings that went way too far.
The 11-judge panel sided with Smith, making clear in their decision issued Thursday that they wanted to rein in their own court. They said environmental groups want judges to act as a panel of scientists that analyzes studies and requires the Forest Service "to explain every possible scientific uncertainty."
That's "not a proper role for a federal appellate court," they wrote.
They acknowledged that 9th Circuit judges had in earlier cases gone too far in requiring the Forest Service to provide detailed scientific support and evidence for every decision.
"We created a requirement not found in any relevant statute or regulation," they wrote. "We defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors.
The other judges who joined Smith in the decision included six appointed by Republican presidents and five appointed by Democrats.
But Dan Rohlf, a professor at Lewis & Clark Law School in Portland and a leading environmental attorney, said the decision is a "recipe for disaster." He said it nearly eliminates critical judicial oversight of federal land agencies, opening the door to political manipulation.
"It is going to really make federal courts less willing to take a close look at the scientific justification for federal decisions," he said.
During the Bush administration, judges have prevented agencies from tilting science to support their own ends, he said.
By requiring judges to defer to those agencies, the new court decision "is a recipe for the policy and ideology of an agency to be able to win the day," said Rohlf. He directs the law school's environmental law center, which often handles logging cases.
Political leaders "will be able to say, 'Go ahead and cut everything down and we'll make sure our scientists say that's O.K. and then we can go to court and say the science supports it,' " he said. Political pressure could be used in the same way to stop all logging, he said.
While the ruling is fascinating from a legal perspective, he said, "for me in my role as an advocate, it's going to be very challenging."
What a load. Last I heard (which was in 2002), 70% of the USFS budget is for legal costs.
That’s what I thought. I was on that thread also. Was it firmly established that it was the Forks of the Salmon or was it speculation?
You’re right, the industry has about folded up shaken out.
There, fixed it. The bones are cheap to pick. In other industries, they call it "consolidation." I call it "corporate fascism," all under the Cheshire Cat poker face of an AF&PA lobbyist.
My guess is things are just about ready for Weyerheauser to "make a comeback." Give it about five more years or until they're done with Canada and we'll be hearing about it in the Wall Street Journal.
This is HUGE news, major!!!
Thanks for the ping Jaz.
This article makes a point about how important it is for the American people (the ones too busy watching American Idol to vote) to think long and hard about who they elect, and who appoints judges.
I am confused on those payments. I live in Josephine County, and the local paper said the county payments were stripped from the last bill they sent, so we won’t get any funding.
But then Goordon Smith gave an interview in which he said he expects the payments to be extended in September.
Ed
Good. Next, they need to decide on oil drilling.
Absolutely, Girl, this is huge. Especially for the people in the wood products business out west here, what’s left of it.
It’ll be interesting to see what’s going to happen cuz like you say, it won’t happen real soon.
It’ll also be interesting to hear the enviro nuts go crazy and listen to their bilge but probably won’t hear much from them for a few days because of the 4th.
“The unanimous decision by 11 judges on the 9th Circuit Court of Appeals was written by Milan D. Smith Jr., the brother of Republican Sen. Gordon Smith of Oregon. The ruling by such a panel is known as an “en banc” decision and is the highest level of court review short of the Supreme Court.”
Thanks so much jazusamo. For some of the counties in the High Sierra’s of California this will be a big help.....thinking of Plumas County, Lassen County and Sierra County. These folks definitely deserve the break that the Supreme Court ruling will allow.
Mahalo
This is amazing. The environ_MENTAL_ISTS must be going nutz.
It really is and I sure hope they are. :)
Good! Although they already are !!
I got hold of a book a few years back, Fire in Sierra Nevada Forests by George Gruell, and the differences he pointed out show how piss-poor we've maintained our public lands. You do realise that Canada will not be too pleased with this decision and the potential change to their exports, don't you? :^)
Good point, brit. Canada won’t be happy at all about this. LOL!
If all else fails, maybe they can resurrect the lynx. ;^)
This is about the third decent ruling to come out of the Ninth Circuit Court in the last few weeks. This is some sort of record, for the last three or so decades.
Simply amazing. What’s up?
I hope it spreads east The forest service here has been tied up in court for years and hasn't let a logging job out.
THIS is the 9th Circuit Court of Appeals?!?!
Thanks.
What happened ?
We defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors.
The unanimous decision by 11 judges on the 9th Circuit Court of Appeals
Talked to my sister who was visiting in Vancouver, lots of ghost towns up there because housing construction has stopped. Is there going to be clear cutting without replacement planting of harvest wood? I understand the value of wood, I love it and want to retire in a 3 room log home, but I also hate clear-cutting. There has to be responsible forestry practices implemented all around. I always wondered why some trees weren’t left to reforest, or why not burn the scraps left on the hills to generate new growth. Guess I just haven’t studied enough, or like the dairy corporations that milk cows three times a day, shortening the life of a dairy cow from 10 yrs to 3 yrs, its all about money.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.